TouchBistro Inc. and its affiliates (collectively, “TouchBistro”, “we”, “us” and terms of similar meaning) provide the TouchBistro restaurant point of sale software, its website www.touchbistro.com (the “Site”), and all associated services and add-ons, including third-party services (collectively, the “TouchBistro Services”) to you (the “Merchant”) subject to these terms and conditions of use (the “Terms”). Merchant can identify the specific TouchBistro entity providing services to it in Merchant’s TouchBistro Services Agreement (as defined below). The Terms apply to: (i) Merchant’s use of TouchBistro Services; (ii) the use of TouchBistro Services by third parties authorized by Merchant through Merchant’s TouchBistro account to use TouchBistro Services and Merchant User Content (as defined below); and (iii) the use by such authorized users of any additional software, hardware or other services provided, referred, or recommended by us or third parties as part of, or for use with, TouchBistro Services.
Please read the Terms carefully before using TouchBistro Services. By accessing, using or continuing to use TouchBistro Services, Merchant agrees to be legally bound by the Terms and all terms, policies and guidelines incorporated by reference into the Terms. If Merchant does not agree with the Terms in their entirety, Merchant may not use TouchBistro Services. In the event of any conflict between the Terms and the terms and conditions of a Merchant’s Sales Quote (as defined below), the Merchant’s Sales Quote shall govern and be paramount.
In the Terms, Merchant and its staff members to whom Merchant gives access to the Merchant’s TouchBistro account are called “Subscribers”, and Merchant’s customers who use TouchBistro Services (for example, to view or use TouchBistro Services designed for use by those parties) are called “Customers”. Users of TouchBistro Services, whether they are Subscribers or Customers, are called “Users”.
TouchBistro reserves the right to change or modify any of the terms and conditions contained in the Terms, or any policy or guideline applicable to TouchBistro Services, at any time upon thirty (30) days’ notice and in its sole discretion. If Merchant does not agree with the changes, Merchant must forthwith expressly advise TouchBistro of same in writing and can cancel its Merchant account with TouchBistro effective upon the expiry of the then current term of the Merchant’s TouchBistro Services Agreement (as defined below). In such an event, until such expiry, the prior Terms will remain in force. Notwithstanding the foregoing, if Merchant renews its TouchBistro Services Agreement past the then current term thereof, it shall be deemed to have accepted the then most current version of the Terms from and after the renewal date. Subject to the foregoing, any changes or modifications will be effective immediately upon the posting of same on the Site, and Merchant’s continued use of TouchBistro Services after such time will constitute Merchant’s acceptance of such changes or modifications.
Merchant should from time to time review the Terms and any policies and documents incorporated therein to understand the terms and conditions that apply to Merchant’s use of TouchBistro Services. The Terms will always show the “last updated” date at the top.
TouchBistro Services are for Merchant’s own use only. Merchant may not resell, host, publish, lease or provide in any other way to anyone else, except as expressly permitted by TouchBistro or under this Agreement. For the purposes of the Terms, the defined terms referenced below have the following meanings. Any capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Merchant’s Sales Quote.
“Effective Date” means the earlier of: i) the Go-Live Date and ii) the Outside Payment Date. “Go-Live Date” means the date that TouchBistro Services are ready to go live in Merchant’s business. “Hardware” means the iPads and other related hardware technology required by Merchant to utilize TouchBistro Services and acquired by Merchant from TouchBistro, as detailed in the Sales Quote. “HPP Agreement” means an agreement between Merchant and TouchBistro pursuant to which Merchant agrees to pay for the cost of any Hardware described therein over time. “Outside Payment Date” has the meaning set forth in Merchant’s Sales Quote. “Quote Created Date” has the meaning set forth in Merchant’s Sales Quote. “Sales Quote” means the agreement entered into by and between Merchant and TouchBistro pursuant to which Merchant has agreed to obtain TouchBistro Services from TouchBistro. “TouchBistro Services Agreement” means collectively Merchant’s Sales Quote, the Terms, the HPP Agreement (if any) and any other agreements entered into by and between TouchBistro and Merchant relating to the provision of TouchBistro Services to Merchant.
1. Privacy Notice
2. Registration Data; Account Security
If Merchant registers for an account on TouchBistro Services, Merchant agrees to (a) provide and maintain accurate, current and complete information as may be prompted by any registration forms on TouchBistro Services (“Registration Data”); (b) maintain the security of Merchant password(s); (c) maintain and promptly update the Registration Data, and any other information Merchant provides to TouchBistro, and keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information or data Merchant provides to TouchBistro directly or through TouchBistro Services. Merchant is responsible for all activity on Merchant’s TouchBistro account, and for charges incurred by and through Merchant’s TouchBistro account.
3. Fees; Charges; Taxes
TouchBistro shall commence charging the software license fees described in the Merchant’s Sales Quote on the Effective Date. Merchant shall pay TouchBistro any fees specified in its Sales Quote, in accordance with the timing and currency specified in the Sales Quote. Overdue amounts shall accrue interest at a rate which is the lesser of: two percent (2%) per month or the maximum rate allowable by law. Merchant is responsible for all taxes applicable to the fees and charges in any applicable jurisdiction. All pre-paid license, subscription, or other fees (including professional services such as installation and training) are non-refundable and subject to any additional payment or other terms or conditions provided for in the Merchant’s TouchBistro Services Agreement.
Professional services must be booked at least fifteen (15) days in advance. Payment is required prior to booking professional services. Cancellation or rebooking must be made a minimum of three (3) days prior to the date professional services are scheduled to be provided, failing which any rescheduling or cancellation will be subject to a one hundred dollar ($100) change fee. If Merchant cancels or changes the dates of any scheduled professional services appointment, Merchant will be given a credit (less change fee) for such services which must be used within sixty (60) days of the Effective Date, failing which the credit expires and constitutes non-refundable payment to TouchBistro.
Except as expressly provided in the applicable Sales Quote, TouchBistro reserves the right, exercisable at any time prior to the commencement of any renewal term, to discontinue, during any such renewal term, any promotion or discount provided to Merchant on fees for TouchBistro Services. In the event TouchBistro chooses to exercise such right, the fees payable by Merchant for TouchBistro Services during such renewal term and thereafter shall be TouchBistro’s standard list prices for the applicable services in effect at the time of the applicable renewal. Any such change in fees will be communicated to Merchant by written notice at least thirty (30) days prior to the end of the then current term, and shall take effect upon the commencement of the renewal term, unless Merchant terminates the TouchBistro Services Agreement by delivery of written notice to TouchBistro within ten (10) days of receiving notice of such fee changes.
4. Ownership, Copyright and Trademarks
The content made available by TouchBistro through TouchBistro Services, including all information, content, data, logos, marks, interfaces, designs, graphics, pictures, sound files, other files, and their selection and arrangement, is called “Content”. Content provided by Users is called “User Content”. For example, data about its Customers that Merchant provides to TouchBistro and, data about its payments, menu, or operations that Merchant provides to TouchBistro or is accessible by TouchBistro through TouchBistro Service is User Content of that Merchant, and Content that a User enters into any TouchBistro database is User Content of the User. User Content is that User’s property and may only be utilized by TouchBistro as expressly authorized herein. Without restricting the generality of the foregoing, it is expressly agreed that TouchBistro is granted a limited license to utilize any User Content as necessary to provide and perform TouchBistro Services, including to provide support to Users. Other than the User Content, all Content and all software available on TouchBistro Services or used to create and operate TouchBistro Services is the property of TouchBistro or its licensors, and is protected by Canadian and international patent, trademark, and copyright laws, and all rights to TouchBistro Services, such Content and such software are expressly reserved. All trademarks, registered trademarks, product names and company names or logos mentioned in TouchBistro Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation of them by TouchBistro. Throughout the term of TouchBistro Services Agreement, TouchBistro may utilize Merchant’s business name, Merchant’s logo and Merchant’s other registered or unregistered trademarks, trade names, brands and/or service marks, on the Site and in other TouchBistro promotional material, to promote the business of TouchBistro. TouchBistro may use and shall be the exclusive owner of any feedback, suggestions, improvements or ideas (“Feedback”) Merchant provides or has provided to TouchBistro regarding TouchBistro Services. This applies to Feedback provided to TouchBistro at any time in any format. Merchant assigns all intellectual property rights in Feedback to TouchBistro immediately upon communication of such Feedback to TouchBistro or its representatives. TouchBistro may use Feedback for any purpose without compensation or attribution to Merchant and Merchant forever waives and surrenders any and all rights in Feedback. If Merchant authorizes third parties to access Merchant’s User Content through TouchBistro Services, Merchant agrees that we are permitted to provide to them the User Content, and also agrees that we have no responsibility or liability for their use of such User Content. Any such access shall be governed by any applicable end user or API agreements or terms applicable to such third party and may be subject to fees charged by such third party. Without limiting the generality of the foregoing, Merchant is responsible for all business continuity, data loss, business interruption, or other risks that may arise out of Merchant’s use of TouchBistro Services. TouchBistro denies, disclaims, and waives any liability for any loss that may occur arising through use of TouchBistro Services, including, but not limited to, loss of data, business interruption, incorrect calculation of any amount, including taxes or amounts due from Merchant’s Customers, or loss of Merchant’s goodwill. TouchBistro Services are provided on an “as is” basis. Merchant acknowledges and accepts all risks associated with using TouchBistro Services and releases TouchBistro from any claim or liability in relation thereto. Merchant’s User Content is Merchant’s responsibility. We have no responsibility or liability for it, or for any loss or damage Merchant’s User Content may cause to Merchant or other people.
5. Merchant Limited License of Merchant User Content to TouchBistro
We do not claim any ownership interest or rights in Merchant User Content except as provided for under the Terms, but we do need the right to use Merchant User Content to the extent necessary to provide TouchBistro Services, now and in the future. Therefore, with respect to any User Content posted to, distributed or otherwise accessible through TouchBistro Services, Merchant (a) grants TouchBistro a non-exclusive, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from such User Content, i) in any manner as may be necessary to provide TouchBistro Services, ii) for any purposes for which TouchBistro Services from time to time use such User Content, and iii) to ensure the security of TouchBistro Services, systems and technology; (b) represents and warrants that (i) Merchant owns and controls all of the rights to the User Content Merchant posts, distributes or is made otherwise accessible to TouchBistro by Merchant through TouchBistro Service, or Merchant otherwise has the lawful right to post and distribute that User Content, to or through TouchBistro Services, and (ii) the use and posting or other transmission of such User Content does not violate the Terms and will not violate any rights of or cause injury to any person or entity.
If Merchant’s User Content is intended for the use of other Users, Merchant also grants us and our partners a non-exclusive, royalty-free, transferable right to sublicense such User Content to such Users for their use in connection with their use of TouchBistro Services in accordance with all applicable privacy laws and regulations. These licenses from Merchant are non-exclusive because Merchant has the right to use Merchant User Content elsewhere. They are royalty-free because we are not required to pay Merchant for the use of Merchant User Content on TouchBistro Services. They are transferable because we need the right to transfer these licenses to any successor operator of TouchBistro Services. Our rights to “modify, adapt, translate, and create derivative works from” are necessary because the normal operation of TouchBistro Services does this to Merchant User Content when it processes it for use in TouchBistro Services.
In addition to the foregoing, Merchant agrees that TouchBistro may compile, collect, copy, modify, publish and otherwise use User Content in an aggregated fashion (excluding any parts of the User Content that represents personally identifiable information of an individual) (“Aggregated Anonymous Data”) for any lawful purpose. TouchBistro shall be the owner of the Aggregated Anonymous Data, and may, without limitation, use the Aggregated Anonymous Data to analyze, improve, support and operate TouchBistro Services, combine it with data from other sources, share it with third parties and otherwise use it for any lawful business purpose, both during the currency, and after the termination, of the Merchant’s TouchBistro Services Agreement, including without limitation, in order to generate industry benchmarks or best practices guidance, recommendations or similar reports for distribution to and consumption by TouchBistro, Subscribers and other third parties.
Notwithstanding the foregoing, it is expressly acknowledged and agreed that any and all Customer information and data, including personally identifiable information, of any Customer of Merchant which is collected by TouchBistro through the use by the Customer of TouchBistro’s reservations, waitlist and online ordering services and Gift Card Services (as defined below) (collectively, the “RWOO Customer Data”) shall be the sole property of TouchBistro and not Merchant. To the extent allowable by applicable law and authorized by the Customer in question, TouchBistro may share RWOO Customer Data with Merchant, solely for the purpose of Merchant fulfilling Customer reservation, waitlist, online ordering, Gift Card Services or other requests and for no other purposes. Merchant agrees to utilize all RWOO Customer Data solely for the purposes for which the data was provided to Merchant, and Merchant agrees to at all time comply with applicable privacy and other laws associated with the handling and use of such RWOO Customer Data.
6. Our Limited License of Content to Merchant
TouchBistro grants Merchant a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access TouchBistro Services and to view, copy and print the portions of the Content available to Merchant through TouchBistro Services for the limited purpose of using TouchBistro Services as contemplated by Merchant’s TouchBistro Services Agreement. Such license is subject to the Terms, and specifically conditional upon the following: (i) Merchant may only view, copy and print such portions of the Content for Merchant’s own use as contemplated by TouchBistro Services; (ii) Merchant may not modify or otherwise make derivative works of the Content, or reproduce, distribute or display the Content except as expressly permitted in the Terms; (iii) Merchant may not remove or modify any copyright, trademark, or other proprietary notices that have been placed in the Content; (iv) Merchant may not use any data mining, robots or similar data gathering or extraction methods; and (v) Merchant may not use TouchBistro Services or the Content other than for their intended purpose. Merchant may not assist any third party in carrying out these prohibited activities. When Merchant uses TouchBistro Services to publish any menu, online ordering or similar functionality, a TouchBistro logo or similar attribution with a link to touchbistro.com will be installed. Except as expressly permitted above, any use of any portion of the Content without the prior written permission of TouchBistro is strictly prohibited and may result in the termination of the license granted in this section without notice, and immediate termination of the Merchant’s TouchBistro Services Agreement and Merchant account with us. Any such unauthorized use may also violate applicable laws, including without limitation patent, copyright and trademark laws. Unless explicitly stated herein, nothing in the Terms may be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The license in this section is revocable by TouchBistro at any time without notice or warning. Merchant represents and warrants that its use of TouchBistro Services and the Content will be consistent with this license and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties, or violate any applicable law or regulation.
7. Using TouchBistro Services and Marketing Services
TouchBistro Services may include services whereby Merchant, developers, or third parties hired by Merchant use TouchBistro Services to market Merchant’s products and services. This section contains terms and conditions applicable to Merchant’s use of TouchBistro Services for that purpose (a “TouchBistro Marketing Initiative”). If Merchant procures a third party to develop a TouchBistro Marketing Initiative for Merchant, this section applies to Merchant and its use of the TouchBistro Services, and Merchant is responsible for the third party’s compliance with this section to the same extent as though Merchant were developing the TouchBistro Marketing Initiative itself. TouchBistro grants Merchant a limited, revocable, non-exclusive, non-sublicensable license to use TouchBistro Services as provided by TouchBistro, in the manner permitted by the Terms. Such license does not license any other Content to Merchant. If Merchant wishes to use Merchant’s TouchBistro Marketing Initiative to display or deliver any Content provided to us by a Subscriber, Merchant must obtain the prior agreement of that Subscriber to that use, by obtaining a license from the Subscriber, for Merchant’s use of that Content. This limited license is subject to the usage restrictions set forth in Section 6 above.
8. Hardware for TouchBistro Services
TouchBistro Services are intended to operate together with dedicated hardware. To minimize the risk of security breaches and technology malfunctions, Merchant agrees to use dedicated hardware for TouchBistro Services. For example, Merchant will ensure that Merchant’s employees do not install apps on the iPads; do not use the iPads to surf the web, and such. If Merchant does not use dedicated hardware, we reserve the right to not support Merchant’s TouchBistro Services as the other applications may cause conflicts or performance issues with TouchBistro Services.
TouchBistro uses mobile device management (“MDM”) software to provide TouchBistro Services, and Merchant acknowledges and agrees that, as a condition of receiving TouchBistro Services, any hardware deployed by Merchant to utilize TouchBistro Services shall be enrolled in the MDM program, and TouchBistro shall have the right to access and control any such hardware through the MDM for any and all the purposes related to providing the TouchBistro Services to Merchant, and for such other purposes as are expressly set forth herein. Merchant shall take any and all such steps as may be necessary in order to grant such access and control to TouchBistro as TouchBistro may require, in its sole discretion. The MDM software constitutes a third-party service for the purpose of the Terms. Please refer to Section 13 below for each party’s obligations with respect to such third-party service.
9. Using TouchBistro Gift Card Services
TouchBistro Services may include certain gift card services (the “Gift Card Services”) which support the issuance and management of gift cards to Customers. If Merchant offers gift cards to its Customers through Gift Card Services, Merchant (not us) is the issuer and administrator of such gift cards, which must: (i) not be reloadable; (ii) not be used for payment for a credit account; (iii) be “closed loop” gift cards that may only be used for purchase of goods and services from Merchant and no other merchant or company; and (iv) not assess or impose any fees or charges on the issuance, activation, maintenance, or redemption of gift cards. Merchant further agrees: (i) not to issue a gift card with a value in excess of one-thousand dollars ($1,000) or add value to a previously issued gift card so that the total funds loaded on a gift card in any single day exceed one-thousand dollars ($1,000); (ii) not to issue more than one thousand dollars ($1,000) in gift cards to any single person in any one day; (iii) not to impose an expiration date on the gift card, and any unused balance of a gift card must remain available to the holder of the gift card until fully redeemed, even if Merchant’s TouchBistro account is closed, suspended, or terminated; and (iv) not to provide a cash refund from or cash back on gift cards except to the extent required by applicable law. When issuing a gift card, Merchant must clearly disclose on the gift card itself, and on any packaging and promotional materials associated with the gift card, any restrictions, limitations and terms and conditions in respect of the use of such gift card, as well as contact information for the purpose of obtaining information about the gift card, including any remaining balance. All gift cards and the funds associated with gift cards are Merchant’s sole property. In addition to Merchant’s other indemnification obligations under the Terms, any liability for the use or misuse of Merchant’s gift cards, including any unfunded gift card balance or fraudulent activity, unauthorized use or losses related to a gift card or Customer, and any third party claims arising from or relating to Merchant’s gift cards, are Merchant’s sole responsibility. Merchant is solely responsible for compliance with federal, provincial/state, territorial, and local laws, rules and regulations that apply to its gift cards, including but not limited to notice, disclosure requirements and language requirements, expiration dates and fees, refunds, unclaimed property or escheat requirements (such as tracking, reporting, and remittance of unclaimed property balances in all states), and customer service for buyers and holders of gift cards. Merchant represents and warrants that the balance associated with its gift cards will be at all times appropriately funded by deposits placed by the Customers with Merchant in connection with such gift cards in an amount that is no less than 100% of the total amount of currency represented as active and available to Customers of the current day’s gift card balance. Merchant will be responsible for overseeing and managing such funding, and responsible and liable for any failure of the gift cards to be fully funded.
10. Other Restrictions on Use of TouchBistro Services
11. Using Social Media Areas and TouchBistro Services
TouchBistro Services may include discussion forums, location-based services, menu, pricing, and establishment information, bulletin boards, review services or other forums in which Merchant or third parties may post reviews or other content, messages, materials or other items (“Social Media Areas”). If TouchBistro provides such Social Media Areas, Merchant is solely responsible for Merchant’s use of such Social Media Areas and uses them at its own risk. User Content submitted to any Social Media Areas will be considered non-confidential. Merchant agrees not to post, upload to, transmit, distribute, store, create or otherwise publish on Social Media Areas any of the following: (i) any message, data, information, text, music, sound, photos, graphics, code or other material that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable; (ii) content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law; (iii) content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; (iv) content that impersonates any person or entity or otherwise misrepresents Merchant’s affiliation with a person or entity; (v) unsolicited promotions, political campaigning, advertising or solicitations; (vi) private information of any third party, including, without limitation, addresses, phone numbers, email addresses and credit card numbers, unless that third party has expressly consented to such use; (iv) viruses, corrupted data or other harmful, disruptive or destructive files; (v) content that is inaccurate, misleading, or unrelated to the topic of the Social Media Area(s) in which such Content is posted; or (vi) content that, in the sole judgment of TouchBistro, is objectionable or which restricts or inhibits any other person from using or enjoying the Social Media Areas or TouchBistro Services, or which may expose TouchBistro or its users to any harm or liability of any type. TouchBistro has a “zero-tolerance” policy towards unauthorized marketing and spam: Merchant may not use the Social Media Areas or TouchBistro Services generally to send commercial or other messages to any third party if those messages are not solicited, authorized or welcomed by the third party, and in Merchant’s use of TouchBistro Services, Merchant must comply with all applicable laws, including laws that apply in any jurisdiction to spam and marketing practices, and with any applicable marketing association guidelines on ethical marketing practices. Any use of the Social Media Areas or other portions of TouchBistro Services in violation of the foregoing violates the Terms and may result in, among other things, termination or suspension of Merchant’s rights to use the Social Media Areas and/or TouchBistro Services.
12. Providing a Reliable and Secure Service
We put a great deal of effort into ensuring that TouchBistro Services operate on a reliable basis and where applicable provide a secure environment for Merchant’s data. We use what we believe to be “best-of-class” infrastructure and hosting services and security technologies and services that we believe provide Merchant with a secure and safe environment. However, no system is perfectly secure or reliable, the Internet, hardware, power sources, and local servers and associated technology are inherently unreliable at times and can be an insecure medium, and the reliability of hosting services, internet intermediaries, Merchant’s internet service provider, servers, databases, access to or use of financial or business records, and other service providers cannot be assured or assumed. When Merchant uses TouchBistro Services, Merchant acknowledges Merchant understands and accepts these risks, and Merchant accepts sole responsibility for choosing to use a technology that does not provide perfect security or reliability.
13. No Responsibility for Third-Party Material
TouchBistro Services may contain links or references to third-party websites (“Third-Party Sites”) and third-party content (“Third-Party Content”) as a service to those interested in this information, including third party suppliers, payment processors and other payment intermediaries that Merchant may use in connection with Merchant’s use of TouchBistro Services. Merchant uses links to Third-Party Sites and any Third-Party Content or service provided there, at Merchant’s own risk. TouchBistro makes no claim or representation regarding Third-Party Content or Third-Party Sites, and provides them or links to them only as a convenience. Inclusion in TouchBistro Services of a link to a Third-Party Site or Third-Party Content does not imply TouchBistro’s endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Site or Third-Party Content. TouchBistro accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third-Party Content, Third-Party Sites, or websites linking to TouchBistro Services. When Merchant leaves TouchBistro Services, our Terms and policies no longer govern. Merchant should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Site, and should make whatever investigation Merchant feels necessary or appropriate before proceeding with any transaction with any third party. The provider of any third-party service is solely responsible for that third-party service, the content therein, any warranties to the extent that such warranties have not been disclaimed, any training, support or maintenance for the third-party services, and any claims that Merchant or any other party may have relating to that third-party services or Merchant’s use of that third-party service. Merchant acknowledges that: (i) Merchant is purchasing the license to each third-party service from the provider of that third-party service; (ii) TouchBistro is not acting as agent for the provider in providing each such third-party services to Merchant; (iii) TouchBistro is not a party to the license between Merchant and the provider with respect to that third-party services; and (iv) TouchBistro is not responsible for that third-party services, the content therein, or any warranties or claims that Merchant or any other party may have relating to that third-party services or Merchant’s use of that third-party services. Merchant acknowledges and agrees that TouchBistro is a third party beneficiary of the End User License Agreement for each third-party services, and that, upon Merchant’s acceptance of the terms and conditions of the license to any such third-party services, TouchBistro will have the right (and will be deemed to have accepted the right) to enforce such license against Merchant as a third party beneficiary thereof.
14. Advertisements and Promotions
TouchBistro may run advertisements and promotions of third parties on TouchBistro Services. Merchant’s business dealings or correspondence with, or participation in promotions of, advertisers other than TouchBistro, and any terms, conditions, warranties or representations associated with such dealings, are solely between Merchant and such third party. TouchBistro is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third-party advertisers on TouchBistro Services.
15. Warranty Disclaimer
TouchBistro Services and any third-party services are provided to Merchant on an “as is” basis without any warranties from TouchBistro of any kind, either express or implied. TouchBistro expressly disclaims all other warranties, express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. TouchBistro does not represent or warrant that TouchBistro Services are accurate, complete, reliable, current or error-free. TouchBistro Services and access to data may be interrupted or unavailable at any time and Merchant accepts all risks associated with such unavailability or interruption. Merchant should establish other systems to ensure business continuity and to ensure the accuracy or reliability or any business, financial or accounting data generated by the use of TouchBistro Services or otherwise stored or accessed through TouchBistro Services. While TouchBistro attempts to make Merchant’s access to and use of TouchBistro Services safe, TouchBistro does not represent or warrant that the TouchBistro Content, the third-party services or TouchBistro Services are free of viruses or other harmful components or will be available without interruption or error.
16. Limitation of Liability; Indemnity
Merchant waives and shall not assert any claims or allegations of any nature whatsoever against TouchBistro, its sponsors, suppliers, contractors, advertisers, vendors or other partners, licensors, any of their successors or assigns, or any of their respective officers, directors, agents or employees (collectively, the “Released Parties”) arising out of or in any way relating to Merchant’s use of TouchBistro Services or any third-party services, including, without limitation, any claims or allegations relating to infringement of proprietary rights, or allegations that any Released Party has or should indemnify, defend or hold harmless Merchant or any third party from any claim or allegation arising from Merchant’s use or other exploitation of any third-party services or TouchBistro Services. Without restricting the generality of the foregoing, TouchBistro has no liability whatsoever with respect to any Customer’s use of services provided by Merchant. Merchant is solely responsible and liable in all respects to the Customer with regards to fulfilling any reservations or waitlist requests with Merchant made through TouchBistro Services, or any online orders placed with Merchant or any Merchant gift cards purchased through Gift Card Services, and Merchant shall indemnify, defend or hold harmless the Released Parties from any claim or allegation of a Customer arising from or relating to any such reservations or waitlist requests with Merchant, any such online orders placed with Merchant or such Merchant gift cards. In addition, Merchant is solely responsible for establishing policies and practices regarding payments (including prepayments) for reservations, waitlist requests and online orders or fees or costs incurred by Customers who fail to utilize a booked reservation or waitlist request. It shall be Merchant’s responsibility to prominently display and disclose any and all such policies and practices to the Customer. Merchant uses TouchBistro Services completely at Merchant’s own risk. Merchant agrees that this is fair and reasonable.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER TOUCHBISTRO NOR ANY OTHER RELEASED PARTY SHALL BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF ACCESS TO OR USE OF DATA OR LOSS OF GOODWILL, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE ANY OR ALL TOUCHBISTRO SERVICES OR ANY THIRD-PARTY SERVICES, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM MERCHANT’S RELIANCE ON TOUCHBISTRO SERVICES OR ANY THIRD-PARTY SERVICES OR OTHER INFORMATION OBTAINED FROM TOUCHBISTRO OR ANY OTHER RELEASED PARTY OR ACCESSIBLE VIA TOUCHBISTRO SERVICES OR ANY THIRD-PARTY SERVICE, OR THAT RESULT FROM MISTAKES, ERRORS, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR DATA OR EMAIL, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO TOUCHBISTRO OR ANY OTHER RELEASED PARTY’S RECORDS, PROGRAMS OR SERVICES. In no event shall the aggregate liability of TouchBistro, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of TouchBistro Services or any third-party services exceed any compensation paid by Merchant for access to or use of TouchBistro Services for the three (3) months immediately prior to the date of any claim. Merchant shall defend, indemnify and hold harmless TouchBistro and the other Released Parties from any loss, damages, liabilities, costs, expenses, claims and proceedings arising out of Merchant’s use of TouchBistro Services or any third-party services and from the use TouchBistro Services or any third-party services by any person to whom Merchant gives access to Merchant account (including as staff), including any claims made by any person that any of Merchant’s User Content infringes the rights, including the intellectual property rights, of any third party. Some jurisdictions limit the scope of limitations of liability in which event TouchBistro claims the full scope of limitation of liability as may be allowed in any applicable jurisdiction.
Notices that we give Merchant (other than notice of amendment of the Terms, which is discussed in the introduction of the Terms) may be provided in any number of ways, depending on the circumstances. For example, we may email Merchant or telephone Merchant at the contact information Merchant provided at time Merchant entered into the TouchBistro Services Agreement (as same may have been updated by Merchant from time to time). Or we may post a notice to Users in the dashboard area of Merchant’s account on the Site, or post the notice elsewhere on the Site. When we post notices on the Site, we post them in the area of the Site suitable to the notice. It is Merchant’s responsibility to periodically review the Site for notices. Merchant agrees to keep all Registration Data current and up to date. Subject to the Privacy Notice, if Merchant sends TouchBistro or posts on Social Media Areas any information, ideas, inventions, concepts, techniques or know-how (“User Submissions”), for any purpose, including the developing, manufacturing and/or marketing or products or services incorporating such information, Merchant acknowledges that TouchBistro can use without limitation the User Submissions without acknowledgment or compensation to Merchant, and Merchant waives any claim of ownership or compensation or other rights Merchant may have in relation to the User Submissions. We actively review User Submissions for new ideas. If Merchant wishes to preserve any interest Merchant might have in Merchant User Submissions, Merchant should not post them or send them to us.
18. Applicable Law and Venue
Merchant and TouchBistro both benefit from establishing a predictable legal environment in regard to TouchBistro Services. Therefore, Merchant and TouchBistro explicitly agree that all disputes, claims or other matters arising from or relating to Merchant’s use of TouchBistro Services or any third-party services shall be exclusively governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein and the courts sitting at Toronto, Ontario. The parties hereto waive any right to trial by jury in respect of any dispute arising from or related to the TouchBistro Services Agreement. Except where prohibited by applicable law, any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether preexisting, present or future) involving TouchBistro and arising out of or relating to (a) the Terms; (b) TouchBistro Services or any associated third-party services; (c) oral or written statements, advertisements or promotions relating to TouchBistro Services or any associated third-party services; or (d) the relationships that result from TouchBistro Services or any associated third-party services (collectively, a “Claim”), will be referred to and determined by individual arbitration by a single arbitrator (to the exclusion of the courts) sitting at Toronto, Canada in accordance with the Arbitrations Act of Ontario. Arbitration can be initiated by either party delivering to the other party a written notice of arbitration invoking this provision. The arbitrator’s authority is limited to claims between Merchant and us alone. Claims may not be joined or consolidated unless Merchant and we consent in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. The arbitrator’s decision will be final and binding. Each party will bear its own expenses under such arbitration, subject to the authority of the arbitrator to make an award of legal costs in accordance with the arbitrator’s authority. Except where prohibited by applicable law, Merchant waives any right Merchant may have to commence or participate in any class action against TouchBistro related to any Claim and, where applicable, Merchant also agrees to opt out of any class proceedings against TouchBistro. Without limiting the foregoing, Merchant and TouchBistro will not have the right to participate in a representative capacity or as a member of any class pertaining to any Claim or other matter related to the TouchBistro Services Agreement. If Merchant has a Claim, Merchant should give written notice of arbitration by registered mail to TouchBistro’s head office. If TouchBistro has a Claim, it will give Merchant notice of arbitration at Merchant’s address provided in Merchant’s Registration Data. Arbitration will be conducted by one arbitrator pursuant to the commercial arbitration laws and rules under Arbitrations Act of Ontario in effect on the date of the notice in the Province of Ontario. To the extent arbitration as described above is prohibited by applicable law, Merchant agrees that all Claims shall be heard and resolved in a court of competent subject matter jurisdiction located in Toronto, Ontario. Merchant consents to the personal jurisdiction of such courts over Merchant, stipulates to the fairness and convenience of proceeding in such courts and submits to their exclusive jurisdiction, and covenants not to assert any objection to proceeding in such courts.
Notwithstanding the foregoing, TouchBistro shall be entitled, at its election, to apply to a court of competent jurisdiction: (i) for interim or permanent injunctive relief, a mandatory order, restraining order, or other like relief to restrain an actual or threatened breach of the TouchBistro Services Agreement and TouchBistro’s rights under it by any party and specifically but not limited to protection of the intellectual property, information technology, brand, trademarks, and other proprietary material of TouchBistro or its suppliers or licensors; and (ii) to collect any outstanding amounts that Merchant owes to TouchBistro.With respect to Merchant’s use of TouchBistro Services Merchant, Merchant is responsible for compliance with all local laws applicable to Merchant and Merchant’s use of TouchBistro Services and Merchant agrees to indemnify TouchBistro and the other Released Parties for Merchant’s failure to comply with any such laws.
19. Term and Termination/Modification of License and Site Offerings
The term of the TouchBistro Services Agreement shall commence on the Quote Created Date and shall continue for such number of months following the Effective Date as is specified in the Sales Quote beside the heading “Initial Term” (the “Initial Term”). Upon expiration of the Initial Term and unless otherwise stated in the Sales Quote, the term of the TouchBistro Services Agreement will automatically renew for a period equivalent to the period of the Initial Term unless terminated by Merchant or TouchBistro by delivery of written notice to the other party at least thirty (30) days prior to the end of the then current term. Unless otherwise provided, TouchBistro Services and access to Content are purchased as subscriptions.
Except as otherwise expressly set forth herein, Merchant may not terminate this Agreement prior to the expiration of the then current term. Notwithstanding any provision of the Terms, TouchBistro reserves the right, without notice and in its sole discretion, without any liability to Merchant to (a) terminate Merchant’s license to use TouchBistro Services, or any portion thereof (including any use of any third-party services) and the rights of any third party authorized by Merchant to access Merchant’s TouchBistro account and User Content through TouchBistro Services; (b) block or prevent Merchant’s future access to and use of all or any portion of TouchBistro Services or Content (including any use of any third-party services) and the rights of any third party to which Merchant has granted access to Merchant’s TouchBistro account and User Content through the TouchBistro Services; (c) change, suspend or discontinue any aspect of TouchBistro Services or Content; and (d) impose limits on TouchBistro Services or Content. Merchant’s sole remedy in such circumstances shall be limited to and not exceed the return of the pro rata amount of any pre-paid fees applicable to the balance of the term of any then current subscription period.
When Merchant’s TouchBistro account is terminated, Merchant’s User Content will, shortly thereafter, cease to appear on TouchBistro Services, except for User Content submitted to Social Media Areas, which may remain on the Social Media Areas after termination. TouchBistro may also retain an archival copy of Merchant’s User Content after termination, and Merchant hereby grants us a non-exclusive, perpetual, irrevocable license to maintain such archival copy for our internal business purposes. If the TouchBistro Services Agreement expires or terminates for any reason, Sections 4, 10-20, any representation or warranty Merchant makes in the Terms, and any other term of the Terms that by its nature is ongoing, shall survive indefinitely.
In the event that Merchant defaults under any obligations owed to TouchBistro under the Merchant’s TouchBistro Services Agreement, in addition to any and all other rights and remedies which have in law or in equity, TouchBistro may terminate the Merchant’s TouchBistro Services Agreement, in which event, (i) if Merchant was provided with an Incentive (as disclosed in the Merchant’s Sales Quote), Merchant shall be liable to repay, and shall forthwith repay to TouchBistro, the entire amount of the Incentive; and (ii) Merchant shall be liable to pay, and shall forthwith pay to TouchBistro, the entire amount of any software license fees, hardware fees or payments and other amounts which would have been payable by Merchant to TouchBistro during the balance of the then current term of the Merchant’s TouchBistro Services Agreement, had the said agreement not been terminated.
In addition to the foregoing, in the event that Merchant defaults under any obligations owed to TouchBistro under the Merchant’s TouchBistro Services Agreement, it is expressly agreed that (a) if Merchant is a party to an HPP Agreement, throughout the term of the HPP Agreement, TouchBistro shall maintain the right to remotely disable any iPads which form part of the subject matter of the HPP Agreement; and (b) if the default occurs during the Initial Term and the Merchant was provided an Incentive for hardware (as disclosed in the Merchant’s Sales Quote), TouchBistro shall maintain the right to remotely disable any iPads which form part of the subject matter of the Merchant Services Agreement.
If any provision of the Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions. TouchBistro may assign any or all of its rights hereunder to any party without Merchant’s consent. Merchant is not permitted to assign any of Merchant’s rights or obligations hereunder without the prior written consent of TouchBistro, and any such attempted assignment will be void and unenforceable. The TouchBistro Services Agreement constitutes the entire agreement between Merchant and TouchBistro regarding Merchant’s use of TouchBistro Services or any associated third-party services, and supersedes all prior or contemporaneous communications whether electronic, oral or written between Merchant and TouchBistro regarding Merchant’s use of them. Merchant has reviewed, understood and accepted the terms and conditions set forth in the TouchBistro Services Agreement and has either consulted with legal counsel prior to its execution or has knowingly forgone its right to consult with legal counsel prior to such execution. The parties confirm that it is their wish that the Terms, as well as any other documents relating to these Terms, including notices, have been and shall be drawn up in the English language only. Les parties reconnaissent avoir convenue que la présente convention ainsi que tous documents, avis et procédures judiciaires qui pourront être exécutés, donnés ou intentées à la suite des présentes ou ayant un rapport, direct ou indirect, avec la présente convention soient rédigée en anglais.